Citation Nr: 1048178
Decision Date: 12/28/10 Archive Date: 01/03/11
DOCKET NO. 09-28 505 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina
THE ISSUE
Entitlement to an increase in a 30 percent rating for a right
knee disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. D. Regan, Counsel
INTRODUCTION
The Veteran had active service from September 1996 to July 1998.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a January 2009 RO rating decision that increased
the rating for the Veteran's service-connected right knee
disability (moderate chondromalacia of the right knee) from 10
percent to 30 percent, effective August 25, 2008. In September
2010, the Veteran testified at a Board videoconference hearing.
The appeal is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will
notify the appellant if further action is required.
REMAND
The Board finds that there is a further VA duty to assist the
Veteran in developing evidence pertinent to her claim.
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009).
The Veteran was last afforded a VA orthopedic examination in
November 2008. The diagnosis was grade 2 moderate chondromalacia
of the (right) knee with swelling. As to range of motion, the
examiner indicated that flexion was from 20 to 130 degrees with
pain and that extension lacked 20 degrees to neutral with pain.
The examiner stated that the range of motion of the right knee
was additionally limited following repetitive use due to pain
resulting in a 20 degree further reduction in flexion. The
examiner reported that the Veteran's range of motion of the right
knee was from 20 to 110 degrees, both active and passive, after
repetitive use. The examiner indicated that there was a
posterior Drawer sign of 6 mm posteriorly, and that it was
negative, anteriorly. It was noted that varus and valgus
stressing was negative and that there was palpable tenderness
throughout the right knee with grade 2 moderate crepitus and
swelling. The examiner stated that the McMurray's test was
negative.
A subsequent private treatment record from C. F. Way, M.D.,
indicated that the Veteran suffered from severe chondromalacia of
the right knee. Dr. Way stated that, currently, as to range of
motion of the Veteran's right knee, extension was limited to 30
degrees. Dr. Way indicated that the Veteran used a knee brace to
assist in her mobility.
Additionally, the Board notes that at the September 2009 Board
hearing, the Veteran specifically testified that her right knee
disability had worsened since the November 2008 VA orthopedic
examination. She also indicated that her right knee would give
out on her.
Further, the Board observes that the Veteran has not been
afforded a VA examination as to his service-connected right knee
disability in more than two years. Additionally, the record
clearly raises a question as to the current severity of the
Veteran's service-connected right knee disability. Also, the
Veteran's representative has specifically alleged that the
November 2009 VA orthopedic examination was inadequate.
Therefore, the Board finds that a current examination is
necessary. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA
was required to afford a contemporaneous medical examination
where examination report was approximately two years old); see
also Green v. Derwinski, 1 Vet. App. 121, 124 (1991).
Prior to the examination, any outstanding records of pertinent
treatment should be obtained and added to the record.
Accordingly, the case is REMANDED for the following:
1. Ask the Veteran to identify all medical
providers who have treated her for right knee
problems since September 2008. After
receiving this information and any necessary
releases, contact the named medical providers
and obtain copies of the related medical
records which are not already in the claims
folder.
2. Schedule the Veteran for a VA examination
to determine the severity of her service-
connected right knee disability. The claims
folder must be provided to and reviewed
by the examiner in conjunction with the
examination. All indicated tests should be
conducted, including x-ray, and all symptoms
associated with the Veteran's service-
connected right knee disability should be
described in detail. Specifically, the
examiner should conduct a thorough orthopedic
examination of the Veteran's right knee
disability and provide a diagnosis of any
pathology found.
In examining the right knee
disability, the examiner should
document any limitation of motion (in
degrees) of the Veteran's right knee,
to include providing the point at
which painful motion begins. The
examiner should also indicate whether
there is any guarding on motion and
the degrees at which the guarding
starts.
The examination should also comment as
to whether (and if so, to what extent,
(i.e. slight, moderate, or severe))
the knee disability includes recurrent
subluxation or lateral instability.
The examiner should be asked to
indicate whether pain or weakness
significantly limits functional
ability during flare-ups or when the
right knee is used repeatedly over a
period of time. The examiner should
also be asked to determine whether the
joint exhibits weakened movement,
excess fatigability or incoordination;
if feasible, these determinations
should be expressed in terms of
additional range-of-motion loss due to
any weakened movement, excess
fatigability or incoordination. If it
is not feasible to express any
functional impairment caused by pain,
weakened movement, excess fatigability
or incoordination, found in terms of
additional range-of motion loss, the
examiner should so state.
3. Thereafter, review the Veteran's claim
for entitlement to an increase in a 30
percent rating for a right knee disability.
If the claim is denied, issue a supplemental
statement of the case to the Veteran and her
representative, and provide an opportunity to
respond before the case is returned to the
Board.
The purposes of this remand are to ensure notice is complete, and
to assist the appellant with the development of her claim. The
appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
No action is required of the appellant until further notice.
However, the Board takes this opportunity to advise the appellant
that the conduct of the efforts as directed in this remand, as
well as any other development deemed necessary, is needed for a
comprehensive and correct adjudication of her claim. Her
cooperation in VA's efforts to develop her claim, including
reporting for any scheduled VA examination, is both critical and
appreciated. The appellant is also advised that failure to
report for any scheduled examination may result in the denial of
a claim. 38 C.F.R. § 3.655.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2010).